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MICHAEL J. LEVANGIE, State Bar #160163
LEVANGIE LAW GROUP.
U2 2021 N Street
Sacramento, CA 95811
Tel: (916) 443-4849
Fax: (916) 443-4855
FILED
SAN MATEO COUNTY
Attorneys for Defendant/Cross-Defendant: NOV & 9 2018
BOGDAN DEDYK dba SAFE AUTO TRANSPORT
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i ANDY SABERI. CASE NO. CIV 536294
12 Plaintiff, NOTICE OF MOTION AND MOTION
FOR GOOD FAITH SETTLEMENT
13 Vv. AND ORDER DISMISSING ALL
CROSS-COMPLAINTS and/or
14 || LES STANFORD CHEVROLET CADILLAC. JUDGEMENT ON THE PLEADINGS
INC., BJ INTERSTATE AUTO
15 || TRANSPORTERS, INC., a Nevada corporation, [CCP Sections §§ 438, 877.6]
BOGDAN DEDYK, doing business as SAFE
16 || AUTO TRANSPORT, an individual, and DOES 1 Accompanying Documents.
through 25, inclusive, Memorandum of Points and Authorities
1 Declaration of Michael J. LeVangie
Defendants. Request for Judicial Notice
1 Lodging of Non-California Authorities
19 Date: / jaa
Time: 9:00 AM
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Department 16 — Courtroom 7
21 Hon. Richard H. Du Bois
22 And Related Cross-Actions
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TO ALL PARTIES AND THEIR. ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that on “Saws 1) P14 at 9:00 AM, or as soon thereafter
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as the matter may be heard in Department 16 — Courtroom 7 of the above-entitled Court, located
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at 400 County Center, Redwood City, California, Defendant/Cross-Defendant, BOGDAN
DEDYK dba SAFE AUTO TRANSPORT, will and hereby does move the Court for a
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MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS
age?
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determination that the settlement'reached with Plaintiffs is in good faith and further that all cross-
complaints existing or available against this party are dismissed and/or barred. Additionally, the
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moving party moves the court to enter judgment on the pleadings with respect ‘to the second
cause of action of the cross-complaint of B.J. Interstate against the moving defendant/cross-
defendant.
This motion is made on the grounds that the proposed settlement between the parties
meets the standard for good faith as is set forth by the California Supreme Court in Tech Bilt, Inc.
v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 and is in good faith within the meaning
of the Code of Civil Procedure §877 and §877.6 and on the ground that the second cause of
10 action of the cross-complaint “by B.J. Interstate is barred as a matter of law and this
1 defendant/cross-defendant is entitled to judgement on the pleadings pursuant to Code of Civil
12 Procedure §438.
13 This Motion is based upon this Notice of Motion, the accompanying Memorandum of
14 Points and Authorities, the Declaration of Michael J. LeVangie, and the Request for Judicial
15 Notice, all concurrently filed herewith, all pleadings, records, and documents filed in this action,
16 and upon any oral and documentary evidence presented at the hearing on this matter.
17 The court will issue a tentative ruling on the merits of this matter the court day before the
18 hearing. In accordance with Catifornia Rules of Court, rule 3.1308 and Local Rule 3.10 a
19 tentative ruling on a law and motion matter may be obtained by telephoning (650) 261-5019,
20 after 3:00 p.m. on the first court day immediately preceding the hearing on the motion or by
21 accessing the court’s website at:
22 Wwww.sanmateocourt.org/director.php?filename=,/lawmotion/alltentrules.php
23 Parties intending to appear on the matter shall notify all counsel and the Law and
24 Motion Department or the department hearing the case and state their intent to appear. Parties
25 shall follow the instructions as directed on the telephone Tentative Ruling notification message
26 or on the Court’s website. If you.do not call the court and thé opposing parties by 4:00 p.m. the
27 court day before the hearing, no hearing will be held and the tentative ruling will become the
28 order of the court.
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MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS
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DATED: November 7, 2018 LEVAD
Cross-Defendant,
LJ. ANG.
Atfo ‘OT Defend:
BOGDAN D. DY! dp
SAVE AUTO IS x SPORT
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MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS
MICHAEL J. LEVANGIE, State Bar #160163
LEVANGIE LAW GROUP
2021 N Street
Sacramento, CA 95811
Tel: (916) 443-4849
Fax: (916) 443-4855
Attorneys for Defendant/Cross-Defendant
BOGDAN DEDYK dba SAFE AUTO TRANSPORT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
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i ANDY SABERI, CASE NO. CIV 536294
12 Plaintiff, MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
13 Vv. MOTION FOR GOOD FAITH
SETTLEMENT AND
14 LES STANFORD CHEVROLET CADILLAC, ORDER DISMISSING ALL
INC., BJ INTERSTATE AUTO CROSS-COMPLAINTS and/or
15 TRANSPORTERS, INC., a Nevada corporation, JUDGEMENT ON THE PLEADINGS
BOGDAN DEDYK, doing business as SAFE
16 AUTO TRANSPORT, an individual, and DOES 1 Date: Sa4. 9 7 eel :
through 25, inclusive, Time: 9:00 AM —
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Defendants. Department 16 - Courtroom 7
18 Hon. Richard H. Du Bois
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And Related Cross-Actions
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21 Defendant/Cross-Defendant, BOGDAN DEDYK dba SAFE AUTO TRANSPORT
22 hereby moves the Court for determination that the settlement! between Safe Auto and Plaintiff is
23 in good faith and that all existing cross-complaints are barred and dismissed in accordance with
24 CCP § 877.6 and/or for judgmen: on the pleadings, as 4 matter of law, pursuant to CCP § 438.
25 I. INTRODUCTION
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In 2015 Safe Auto Transport was hired to transport a new Chevrolet Corvette C7.R from
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a dealer, Les Stanford Chevrolet in Michigan, to Andy Saberi in San Francisco. BJ Interstate
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! A copy of the settlement agreement is atatched as Ex. A.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
acted as the transportation broker? for the transaction. During transport of the vehicle a hold
down strap apparently created a small scratch on the front bumper of the vehicle. The total cost
of the repair was $3,623.354.
If. LEGAL AUTHORITY
A. GOOD FAITH SETTLEMENT ,
The legal authority regarding a motion to confirm a good faith settlement is provided in
California Code of Civil Procedure §877.6. The greater purpose of CCP § 877.6 is to encourage
settlement and the equitable sharing of costs. Tech Bilt, Inc. v. Woodward-Clyde & Associates
(1985) 38 Cal.3d 488, 494. In Zech Bilt, the California Supreme Court provided factors to be
10 considered by the trial court in examining whether a settlement was made in good faith. These
il factors include the following:
12 1) An approximation of the plaintiffs’ total recovery and the settlor’s proportionate
13 liabilities;
14 2) the amount paid in settlement;
15 3) the allocation of the settlement;
16 4) recognition the settler should pay less in settlement than if found liable after trial;
17 5) financial conditions and/or insurance policy limits of the defendants;
18 6) the existence of collusion, fraud or tortious conduct aimed to injure the interests of
19 non-settling defendants; and
20 7) the evaluation should pe made on the basis of information available at the time of the
21 settlement.
22 The party asserting the lack of good faith of the settlement has the burden of proof and
23 must demonstrate the settlement;is so far out of the ballpark in relation to these factors as to be
24 inconsistent with the equitable objectives of the statute. Jd. at 499 - 500.
25 Mt
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27 2 See Ex B — BJ Interstate’s Points and Authorities in Support of Motion for Judgment on the Pleadings at pg. 2:5,
also attached to Request for Judicial Notice, # 1.
28 3 See Ex C - Declaration of James Attridge in Support of Motion for Attorney Fee Award Against Plaintiff (and his
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attorneys) at ¥ 1, pg 2:5-7,{ 19, pg. 5: -4, and § 22, pg 5:9 — 15, also attached to Request for Judicial Notice, #3.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
B. MOTION FOR JU 2GMENT ON THE PLEADINGS
Additionally, Defendant/Cross-Defendant Dedyk dba Safe Auto Transport requests
judgement on the pleadings as to the second cause of action for indemnity under the Carmack
Amendment, specifically pleaded as 49 USC 14706(b) in the Cross-Complaint of B.J. Interstate
against Safe Auto Transport, on the grounds it fails to state a cause of action and is inapplicable
as a matter of law. CCP § 438.
“TI. LEGAL ARGUMENT
A. SETTLEMENT TERMS
The settlement terms are simple’. Defendant/Cross-Defendant Dedyk, through his
10 insurance carrier shall pay Plaintiff $20,000.00 and the entire action as to all parties will be
11 dismissed, subject only to a determination of Good Faith and the dismissal of the Cross-
12 Complaint filed by B.J. Interstate against Dedyk dba Safe Auto Transport.
13 B. TECH BILT FACT ORS
14 A good faith settlement bars all claims against the settling tortfeasor for contribution and
15 equitable indemnity. (CCP §§ 877(b), 877.6(c).) and the California Supreme Court has held that,
16 even when a nonsettling defendant claims to be only vicariously or derivatively liable and
17 entitled to total equitable indemnity from an allegedly more culpable tortfeasor, a good faith
18 settlement determination bars the nonsettling tortfeasor's equitable indemnity claims. Far West
19 Financial Corp. v. D & S Co., (1988) 46 Cal.3d 796, 800, 811-812, 817; Bay Development, Ltd.
20 v, Superior Court, (1990) 50 Cal:3d 1012, 1029.
21 I. This settlement is a fair.approximation of the potential liability if this case were to go
to trial.
22,
According to the Court in Tech-Bilt, the overriding question in determining good faith is
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whether or not the amount of settlement is within the “reasonable range” of the settling
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tortfeasors’ proportionate liability. (Tech-Bilt at 499-500).
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Settling defendants’ contiibutions will meet the general “good faith” tests as the settling
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amount paid is not grossly disproportionate to what a reasonable person would estimate a
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28 4 See Ex. D — Precision Body Shop & Detail, Inc. Invoice.
5 Plaintiff previously entered into a settlement agreement with Les Stanford Chevrolet at mediation for $25,000.00.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
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defendant’s potential liability to- be. (Abbot Ford, Inc. v. Superior Court (1974) 33 Cal.3d 858-
879.) The party asserting any ‘ack of good faith of the settlement has the burden of proof to
demonstrate that the settlement is so far out of the ballpark of reasonable settlements as to be
inconsistent with the equitable objectives of the statement. (Tech-Bilt, Inc. at 499-500)
Here, the case consideration of $20,000.00 (plus the prior $25,000.00 from Les Stanford)
to plaintiff is not only within the “ballpark” of a reasonable settlement of plaintiffs’ claims it is a
clear overpayment to avoid continuing litigation costs given the likely verdict value of under
$4,000.00. This settlement is not only within the ballpark of the potential liabilities of the settling
parties it is beyond reasonable given the facts established in this case.
10 2. The settlement is not derived from collusion, fraud or tortious conduct aimed to injure
the interests of non-settling defendants.
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The settling parties have made no concessions to plaintiff or any other defendants or
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cross-defendants in connection with this settlement, other than the agreement to pay the
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settlement amount. This agreement was obtained following a lengthy mediation and two
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settlement conferences
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C. JUDGEMENT ON THE PLEADINGS - THE CROSS-COMPLAINT FILED BY
16 B.J. INTERSTATE IS BARRED
17 There can be no legitimate challenge to the amount of the proposed settlement being in
18 Good Faith under the Tech-Bilt, factors and CCP 877.6. However, we anticipate BJ Interstate
19 will oppose this motion for Good Faith despite the fact this agreement results in the dismissal of
20 plaintiff's action against B.J. Interstate for their alleged independent negligence. B.J. Interstate
21 has stated an intention to oppose this motion, at least as to dismissal of their cross-complaint for
22 indemnity under the Carmack Amendment. B.J. Interstate is a party to this action for alleged
23 negligence in their handling of ihe transaction as a transportation broker and B.J. Interstate has
24 repeatedly confirmed their role as a broker in filings with this court’,
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6 Including in Exhibits B and C attached hereto. See Exhibit B at 2:5 and Exhibit C at 4 1, pg 2:5-7, { 19, pg. 5:3-4,
28 and {| 22, pg 5:9 — 15 which are all admissions by BJ Interstate’s counsel that BJ Interstate is only a broker and not a
carrier.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
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A "broker" is statutorily “defined as a person, other than a motor carrier . that as a
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principal or agent sells, offers- for sale, negotiates for, or holds itself out by solicitation,
advertisement, or otherwise as seiling, providing, or arranging for, transportation by motor carrier
for compensation. 49 U.S.C. § 13102(2). Simply put - a broker is not a shipper - and cannot sue a
carrier under the Carmack Amendment. Exel, Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140,
148-149 (6th Cir, 2015)’. As a result the cause of action under 49 USC 14706(b) as pled in the
Cross-Complaint filed by BJ Interstate is barred and should be dismissed as part of the order
finding this settlement in Good Faith and/or as a matter of law pursuant to the request for
Judgement on the Pleadings.
10 There was no written contract between Safe Auto Transport and BJ Interstate. The BJ
i Interstate cross-complaint seeks attorney fees only under the Carmack Amendment. BJ Interstate
12 is a registered broker® and as such is not covered by the Carmack Amendment provisions. Within
13 the provisions of the Carmack Amendment, 49 U.S.C. § 14706, remedies are provided to
14 shippers against carriers for lost or damaged goods, and if a broker acts as a carrier they could be
15 held liable, but there is no provision for a claim against a carrier by a broker. Therefore the
16 cause of action is barred and should be dismissed as part of the order finding this settlement in
17 Good Faith and/or as a matter of law pursuant to the request for Judgement on the Pleadings.
18 An order determining a settlement to be in Good Faith extinguishes an indemnity claim
19 under the Carmack Amendment. Masson and Dixon International v. Lapmaster International
20 LLC, 632 F2d. 1056 (9th Cir. 2010). We anticipate BJ Interstate will attempt to oppose this
21 motion based upon a line of California decisions holding that a Good Faith order does not bar a
22 claim for statutory indemnity and as the Carmack Amendment is a Federal statute, it is not
23 barred. However, the language of the indemnity provision within the Carmack Amendment is
24 akin to California’s general indemnity statute CCP § 1021.6 which California Courts have held
25 are claims barred by a Good Faith determination.
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7 A copy of Masson and Dixon International v. Lapmaster International LLC, 632 F2d. 1056 (9th Cir. 2010) is item
27 #7 to defendant/cross-defendant’s Notice of Lodging Of Non-California Authorities.
28 8 See Ex E— FMCSA Registration for B.J. Interstate as a Broker only, and also attached to Defendant/Cross-
Defendant’s Request for Judicial Notice'#5, and Ex. F, the USDOT #2226247, also attached to Defendant/Cross-
Defendant’s Request for JudicialNotice #6,
5
MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
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As there is no contract. between Safe Auto and B.J. Interstate, let alone one with an
¥
indemnity provision, and given that B.J. Interstate is a broker, not a carrier or freight forwarder,
they are not entitled to indemnity under Carmack. There is no basis for indemnity under 49 USC
14706 (b) as B.J. Interstate did not issue the Bill of Lading nor deliver the property. They simply
acted, as per their USDOT license, as a broker. Traffic Tech, Inc. v. Arts Transportation, Inc.,
No. 15 C 8014 (N. D. Il. 2016) Carmack liability only applies to carriers and not brokers. See,
Chubb v. H.A. Transportation 243 F. Supp. 2d. 1064 (C.D. Cal. 2002).
A good faith settlement determination bars all equitable indemnity claims, but does not
bar claims based on an applicable and specific statutory right to indemnity. Kantor v. Housing
10 Authority (1992) 8 Cal. App. 4t 424, 429-432; see also John Hancock Mutual Life Ins. Co. v.
11 Setser (1996) 42 Cal.App.4th 1524, 1530.) However, neither CCP section 1021.6 nor 49 USC
12 14706(b) create a statutory right to indemnity. Instead, as the John Hancock court recognized
13 with regard to section 1021.6 these type of sections merely ‘permits an indemnitee to’ recover . . .
14 attorney fees in an implied indemnity action under specified circumstances.’ John Hancock
15 Mutual Life Ins. Co. v. Setser, supra, @ 1531.)
16 A claim for attorney fees under section 1021.6 or 49 USC 14706(b) are "simply a
17 statutory incident" of a "successful common law claim for implied equitable indemnity." (Jd. at
18 p. 1534.) When an equitable indemnity claim is barred by a good faith settlement determination
19 under section 877.6, the attorney. fees component of that equitable indemnity claim under section
20 1021.6 and/or 49 USC 14706(b), is also barred. See, ie., John Hancock Mutual Life Ins. Co. v.
21 Setser, supra, 42 Cal.App.4th at p. 1534. Accordingly, any claim for indemnity or attorney fees is
22 barred.
23 I. The Carmack Amendment Does Not Apply To Claims ByA Broker
24 AgainstA Carrier
There is no contract between BJ Interstate and Safe Auto requiring defense nor indemnity
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be provided. BJ Interstate now’ attempts to invoke the indemnity provisions of the Carmack
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28 ° A copy of Traffic Tech, Inc. v. Arts Transportation, Inc., No. 15 C 8014 (N. D. Ill. 2016) is item # 8 to
defendant/cross-defendant’s Notice of Lodging Of Non-California Authorities.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
+ -
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Amendment. However, BJ Interstate is only a licensed transportation broker!®, and not a carrier.
As such, as a matter of law, these provisions are not applicable to BJ Interstate.
The Carmack Amendment generally preempts state-law causes of action that a shipper
might pursue against a carrier for lost or damaged goods. REI Transp., Inc. v. C.H. Robinson
Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008)!!. This includes state causes of action against
carriers where goods are damaged in interstate commerce. Jd. Claims for indemnity by a broker
are separate and distinct claims cutside the scope of the Carmack Amendment. See, Traffic Tech,
Inc. v. Arts Transp., Inc., 2016 WL 1270496 (N.D. Ill. Apr. 1, 2016).
Traffic Tech, Inc. addressed the liability of a carrier to a broker for damaged goods. In
10 that case the broker claimed Carmack Amendment liability against the carrier where a company
i was contracted to ship a load of apple slices from Washington State to a food processing facility
12 in Iowa. After the food company made the contract, the broker contracted with a carrier to
13 accomplish the shipment. During transit, the carrier put spare tires in the truck’s trailer and when
14 the apple slices were delivered they were rejected.
15 As a result of the non-agzeptance of goods, the broker paid the shipper for the value of
16 the apple slices. Following that. payment, the broker sued the carrier for indemnification of the
17 payment made. The theory was, the carrier was responsible for the damage because they shipped
18 the tires with the apple slices and made the shipment unusable. The broker based their claim on
19 theories that the shipper was liable under the Carmack Amendment and breach of contract. The
20 court held only the breach of contract claim was viable noting:
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1. Within the provisions of the Carmack Amendment, 49 U.S.C. § 14706, remedies are
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provided to shippers against carriers for lost or damaged goods, and if a broker acts as
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a carrier they could ‘be held liable, but there is no provision in the Carmack
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Amendment for a claim against a carrier by a broker.
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0 See Ex. E - BJ Interstate USDOT # 226247 — Registered and Licensed by the Federal Motor Carrier Safety
27 Administration as a broker with no authority to act as a carrier, also attached to Defendant / Cross-Defendant’s
.
Request for Judicial Notice # 6.
28 1A copy of REI Transp, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008) is item # 10 to
defendant/cross-defendant’s Notice of. Lodging Of Non-California Authorities.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
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2. Because there is no provision in the Carmack Amendment for brokers to sue carriers;
a state law breach of tiontract remedy is the only claim available.
The Carmack Amendmeut allows the shipper. who contracts to ship goods to recover for
loss against the carrier who issues the bill of lading. The shipper may also seek recovery against
the delivering carrier. See 49 U.S.C. § 14706(a)(1). These carriers may then recover from
connecting carriers. See id. § 14706(b) but there is no basis for claim by a broker against a carrier
for indemnity under the Carmack Amendment.
In this instance, Plaintiff Saberi is the ‘shipper’, B.J. Interstate is the ‘broker’, and Safe
Auto is the ‘carrier. Under the Carmack Amendment, only Saberi can bring an action against
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Safe Auto. B.J. Interstate is not authorized to do so. Accordingly, they are prohibited, as a
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matter of law, from maintaining such an action and the court must enter judgment in favor of the
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moving party as a matter of law.
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IV. CONCLUSION
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Here, B.J, Interstate was not a shipper - but a broker - who arranged for transportation by
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another carrier, Safe Auto, who.issued a bill of lading and performed the transportation of the
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shipment. As such only a breach of contract or equitable indemnity claim would be viable by B.J
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Interstate against Safe Auto. There is no written contract between BJ Interstate and Safe Auto
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and there is no basis for a claim of defense (attorney fees) nor indemnity — as Safe Auto has
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previously tendered the potential damages
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The proposed settlement agreement complies with the California Code of Civil Procedure
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§877.6, and the relevant factors listed in Tech Bilt, Inc. v. Woodward-Clyde & Associates
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Bogdan Dedyk dba Safe Auto Transport respectfully requests this Court grant the present motion,
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and order the settlement as being made in good faith, which bars all cross complaints, including
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that of B.J. Interstate and, if necessary, enter a Judgment on the Pleadings of the second cause of
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action of the Cross-Complaint filed by B.J. Interstate thereby barring any future claim by any
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other party to this litigation and dismissing all actual and deemed cross-complaints, including
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that filed by B.J. Interstate.
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
DATED: November7, 2018 LEVAN 7
By:
mie
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TAEIA. LEYAG
ttorneys for Defendant/Crg (dant,
BOGDAN DEDYK db:
SAFE AUTQ RADES
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MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS
a.
None ly
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SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Release of all claims is made and entered into by and between the parties below as
of the date of execution:
“PLAINTIFF” ANDY SABERI
“DEFENDANT” BOGDAN DEDYK dba SAFE AUTO TRANSPORT
RECITALS
A Plaintiff filed a complaint against Defendant and others in the Superior
Court of the State of California, County of San Mateo, known as San Mateo County
Superior Court Case No. CIV-536294 (the “Complaint”), arising out of certain alleged
acts or omissions by Defendant and/or others.
B. All parties to this agreement have been fully advised of their rights under
applicable law and of the facts regarding pre-trial preparation and probable outcome at
trial.
Cc. Plaintiff agrees this Settlement Agreement shall serve as a waiver of all
claims against Defendant, including, but not limited to, any cause of action against this
Defendant included in the original Complaint, any amendments to the original Complaint
and/or any other made or potential claim or causes of action, without limitation, accruing
before the date of this agreement. :
D. The parties expressly agree that this settlement payment is made as a good
faith customer service reimbursement of a claim that is wholly contingent upon a court
order finding this agreement in Good Faith pursuant to CCP § 877.6 and the concurrent
dismissal of the cross-complaint filed by BJ Interstate and any cross-complaint by other
parties against this defendant and precluding any future claim for indemnity or
contribution against this defendant.
AGREEMENT
NOW THEREFORE, in consideration of their mutual covenants and promises,
the parties agree as follows:
1.0 RELEASE AND DISCHARGE
Ll Upon the finding of this resolution to be in Good Faith pursuant to CCP §
877.6 and the dismissal of all cross-complaints against defendant, with prejudice, and for
the consideration set forth in Section 2.0, Plaintiff hereby releases and forever discharges
Defendant as well as their respective subsidiaries, parent corporations, principals, agents,
owners, insurance carriers, attorneys, employees, employers, board members and
representatives, from any and all past, present or future claims, demands, obligations,
SETTLEMENT & RELEASE AGREEMENT
PAGE 1OF5
actions, causes of action, rights, damages, costs, losses of services, expenses and
compensation of any nature whatsoever, whether based on a tort, contract, or other theory
of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be
acquired, on account of, or may in any way grow out of the events described in the
Complaint or otherwise, any and all known or unknown claims damages or injuries to the
Plaintiff, or any future claim of Plaintiff's representatives or heirs, which have resulted or
may result from the alleged acts or omissions of Defendant or their respective
subsidiaries,. parent corporations, principals, agents, owners, insurance carriers,
employees, employers, or representatives.
12 This Release shall apply to Defendant’s present and future officers,
directors, stockholders, employees, board members, independent contractors, attorneys,
owners, agents, servants, representatives, employees, subsidiaries, affiliates, partners,
agents, representatives, successors in interest, assigns and all other persons, firms,
corporations or entities with whom any of the former have been, are now, or may
hereafter be affiliated.
1.3 This Release on the part of the Plaintiff shall be a fully binding and
complete settlement by the Plaintiff, his assigns and successors.
14 Plaintiff acknowledges and agrees that the Release and discharge set forth
above is a general release. Plaintiff expressly waives and assumes the risk of any and all
claims for damages which exist as of this date, but of which the Plaintiff does not know
or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise,
and which, if known, would materially affect the Plaintiff's decision to enter into this
Settlement Agreement. Plaintiff further agrees that Plaintiff has accepted the waiver
specified herein as a complete compromise of matters involving disputed issues of law
and fact. Plaintiff assumes the risk that the facts or law may be other than Plaintiff
believes.
1S Plaintiff expressly waives all rights he has, or may have, under Section
1542 of the Civil Code of Califomia and similar laws of any state or territory of the
United States or other jurisdictions. Section 1542 of the Civil Code of California
provides as follows:
Section 1542. General Release - Claiiris Extinguished. A
general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
Hl
Page 2 of 5
2.0 CONSIDERATION FOR SETTLEMENT
21 In consideration for this Release and dismissal with prejudice of San
Mateo County Superior Court Case No. CV-536294 entitled Saberi v Les Stanford,
et al. the parties agree and recognize that the insurance carrier for Defendant Bogdan
Dedyk dba Safe Auto Transport will remit the total sum of Twenty Thousand Dollars
($20,000.00) payable to Andy Saberi or as otherwise directed in the final court order
finding this resolution to be in Good faith pursuant to CCP 877.6. Payment shall be made
within seven (7) days after the final order is filed.
This settlement agreement and any obligation to remit payment or dismiss claims
hereunder is expressly contingent upon the court entering an order granting a motion
finding this resolution to be in Good faith pursuant to CCP 877.6 and dismissing all
current cross-complaints in total and precluding any future cross-complaint or action
for indemnity or contribution against the defendant.
2.2. If payment is made within seven (7) days after the final order is filed,
Plaintiff will dismiss the entire Complaint, with prejudice, and each side will bear their
own attomey fees and costs. If payment is not made within seven (7) days, Plaintiff may
request the Court to award attorney’s fees and costs to Plaintiff to enforce this Settlement
Agreement. Notwithstanding any dismissal of the action, the Court shall retain
jurisdiction to enforce the terms of this agreement.
3.0 REPRESENTATION OF COMPREHENSION OF DOCUMENT
3.1 In entering into this Settlement Agreement, Plaintiff represents that he has
either relied upon the advice of his attorneys, who are the attorneys of his own choosing,
or waived their right to so seck such advice, concerning the legal and income tax
consequences of the Settlement Agreement; that the terms of this Settlement Agreement
are fully understood and voluntarily accepted by Plaintiff.
4.0 WARRANTY OF CAPACITY TO EXECUTE AGREEMENT
4.1 Plaintiff represents and warrants that no person or entity has, or has had,
any interest in the vehicle, claims, demands, obligations, or causes of action referred to in
this Settlement Agreement, except as otherwise set forth herein; Plaintiff has the sole
right and exclusive authority to execute this Settlement Agreement and has not sold,
assigned, transferred, conveyed or otherwise disposed of any of the claims, demands,
obligations, causes of action, or the rights to any of the same as referred to in this
Settlement Agreement.
4.2 Plaintiff represents he is not aware of any lien upon the claims in this
action or the proceeds of this settlement and Plaintiff acknowledges he is solely
responsible to pay any lien, if legally enforceable, if asserted by anyone or any entity,
including any insurer, any attorney, or any state or federal agency. Defendant, his
insurance carrier, and attorneys are released from any obligation to pay any lien or claim
Page 3 ofS
and Plaintiff shall defend and indemnify defendant, his insurance carrier, and/or attorney
from any such claim by a third party.
5.0 GOVERNING LAW
3.1 This Settlement Agreement shall be construed and interpreted in
accordance with the laws of the State of California. For Plaintiff's protection, California
law requires the following to appear on this form:
ANY PERSON WHO KNOWINGLY PRESENTS A
FALSE OR FRAUDULENT CLAIM FOR THE
PAYMENT OF A LOSS IS GUILTY OF A CRIME AND
MAY BE SUBJECT TO FINES AND CONFINEMENT
IN STATE PRISON. Insurance Code §1871.2.
6.0 ADDITIONAL DOCUMENTS
6.1 The parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be necessary or appropriate to
give full force and effect to the basic terms and intent of this Settlement Agreement.
6.2 This Agreement may be executed simultaneously in one or more
counterparts, which counterparts may be on facsimile paper, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
7.0 SUCCESSORS IN INTEREST
TA This Settlement Agreement shall be binding upon and inure to the benefit
of the executors, administrators, personal representatives, heirs, successors and assigns of
each party hereto.
8.0 SEVERABILITY
8.1 If one or more of the provisions contained in this Agreement shall for any
reason be held invalid, illegal or unenforceable in any respect, the invalidity, illegality or
unenforceability of that provision shall not affect any other provision of the Agreement
and this Agreement shall be construed as if the invalid, illegal or unenforceable provision
were never contained in it.
DATED: 10 - 22-\8% hei bP
ANBY SABERT
gp
‘7
—
Page 4 of5
DATED:
BOGDAN DEDYK
DBA SAFE AUTO TRANSPORT
APPROVED AS TO FORM:
DATED: (9-22 -2an5
|AMES DOMBROSKI
HOMAS If SABER1
TTORN#YS FOR PLAINTIF
DY,
DATED: Me (K
HAEL J. LeVANGI
Attorp ey S fendant, OGD, DEDYK.
db O\TRANSP ok
Page 5 of 5
aN ~
« «
JAMES ATTRIDGE [SBN NO. 124003]
LAW OFFICES OF JAMES ATTRIDGE
270 Divisadero Street, #3
San Francisco, CA 94117
i
iL ED
COUNTY
Telephone: (415) 552-3088 MATEO
Email: jattridge@attridgelaw.com |sev gi ani?
Attorney for Defendant BJ Interstate Gust
Auto Transporters, Inc.
irl Les
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
t 10
11
ANDY SABERI, an individual,
Plaintiff,
Case No: CIV-536294
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
12 LES STANFORD CHEVROLET FOR JUDGEMENT ON THE PLEADINGS
CADILLAC, INC. a Michigan corporation,
13 BJ INTERSTATE AUTO TRANSPORTERS, DATE: OCTOBER 20, 2017
INC. a Nevada corporation, BOGDAN
14 DEDYK, doing business as SAFE AUTO TIME: 9AM
TRANSPORT, an individual, and DOES 1
15 through 25, inclusive, DEPARTMENT 16-COURTROOM 7
16 HONORABLE RICHARD H. DU BOIS
--—
=So ----
Saas
17
18
19
INTRODUCTION
20
There is only one cause of action (the fourth) directed at the moving party, BJ Interstate Auto
21
Transporters and it hangs on thisallegation in paragraph 31: “Saberi is informed and believes that
22
Safe Auto Transport was uninsured for the damages alleged herein.” Judicially noticeable material,
23
including a declaration by plaintiff Saberi’s own counsel, disproves this allegation. Belief can be a
24
matter of faith, or of imagining, but information is not. All the information addressing this point in
25
the court’s file points in the opposite direction: that on the date co-defendant Bogdan Dedyk, dba
26
Safe Auto Transport, caused damage to the plaintiff's sportscar, defendant Dedyk was, in fact,
27
insured. Case closed.
28
1
TRIAL BRIEF
~~ i
<
FACTS
Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First
Amended Complaint, (FAC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving
party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for
transportation of the corvette to San Francisco. In turn BJ Interstate contacted co-defendant Dedyk,
dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (FAC
para 11, 12) Some damage was done to the vehicle in transit, and Dedyk has admitted fault.
Apparently, rather than admit this initially, Dedyk attempted repair before delivery and those repairs
10 were cosmetically flawed, making the damage easily discernable. Mr. Saberi has sued Les Stanford
11 contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ
12 Interstate for that same reason.
13 Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a
14 claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the
15 defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned
16 was retained, February 18, 2016 plaintiff Saberi’s counsel received an e-mail advising him that BJ
17 Interstate was a broker and could only be sued for negligent entrustment. That c-mail contained two
18 case citations to support the point and referred plaintiffs counsel to the Federal Motor Carrier Safety
19 Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23,
20 2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that
21 Dedyk was
Preview
vA x ' MICHAEL J. LEVANGIE, State Bar #160163 LEVANGIE LAW GROUP. U2 2021 N Street Sacramento, CA 95811 Tel: (916) 443-4849 Fax: (916) 443-4855 FILED SAN MATEO COUNTY Attorneys for Defendant/Cross-Defendant: NOV & 9 2018 BOGDAN DEDYK dba SAFE AUTO TRANSPORT Clerk at {2 ior Gourt => Zan === =— gL > == 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA == => 9 >>> FOR THE COUNTY OF SAN MATEO lees =—_ >> = 10 (gS (5223 >= i ANDY SABERI. CASE NO. CIV 536294 12 Plaintiff, NOTICE OF MOTION AND MOTION FOR GOOD FAITH SETTLEMENT 13 Vv. AND ORDER DISMISSING ALL CROSS-COMPLAINTS and/or 14 || LES STANFORD CHEVROLET CADILLAC. JUDGEMENT ON THE PLEADINGS INC., BJ INTERSTATE AUTO 15 || TRANSPORTERS, INC., a Nevada corporation, [CCP Sections §§ 438, 877.6] BOGDAN DEDYK, doing business as SAFE 16 || AUTO TRANSPORT, an individual, and DOES 1 Accompanying Documents. through 25, inclusive, Memorandum of Points and Authorities 1 Declaration of Michael J. LeVangie Defendants. Request for Judicial Notice 1 Lodging of Non-California Authorities 19 Date: / jaa Time: 9:00 AM 20 Department 16 — Courtroom 7 21 Hon. Richard H. Du Bois 22 And Related Cross-Actions 23 TO ALL PARTIES AND THEIR. ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on “Saws 1) P14 at 9:00 AM, or as soon thereafter 25 as the matter may be heard in Department 16 — Courtroom 7 of the above-entitled Court, located 2 at 400 County Center, Redwood City, California, Defendant/Cross-Defendant, BOGDAN DEDYK dba SAFE AUTO TRANSPORT, will and hereby does move the Court for a 1 MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS age? now qt & aoe a3 - determination that the settlement'reached with Plaintiffs is in good faith and further that all cross- complaints existing or available against this party are dismissed and/or barred. Additionally, the eee moving party moves the court to enter judgment on the pleadings with respect ‘to the second cause of action of the cross-complaint of B.J. Interstate against the moving defendant/cross- defendant. This motion is made on the grounds that the proposed settlement between the parties meets the standard for good faith as is set forth by the California Supreme Court in Tech Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 and is in good faith within the meaning of the Code of Civil Procedure §877 and §877.6 and on the ground that the second cause of 10 action of the cross-complaint “by B.J. Interstate is barred as a matter of law and this 1 defendant/cross-defendant is entitled to judgement on the pleadings pursuant to Code of Civil 12 Procedure §438. 13 This Motion is based upon this Notice of Motion, the accompanying Memorandum of 14 Points and Authorities, the Declaration of Michael J. LeVangie, and the Request for Judicial 15 Notice, all concurrently filed herewith, all pleadings, records, and documents filed in this action, 16 and upon any oral and documentary evidence presented at the hearing on this matter. 17 The court will issue a tentative ruling on the merits of this matter the court day before the 18 hearing. In accordance with Catifornia Rules of Court, rule 3.1308 and Local Rule 3.10 a 19 tentative ruling on a law and motion matter may be obtained by telephoning (650) 261-5019, 20 after 3:00 p.m. on the first court day immediately preceding the hearing on the motion or by 21 accessing the court’s website at: 22 Wwww.sanmateocourt.org/director.php?filename=,/lawmotion/alltentrules.php 23 Parties intending to appear on the matter shall notify all counsel and the Law and 24 Motion Department or the department hearing the case and state their intent to appear. Parties 25 shall follow the instructions as directed on the telephone Tentative Ruling notification message 26 or on the Court’s website. If you.do not call the court and thé opposing parties by 4:00 p.m. the 27 court day before the hearing, no hearing will be held and the tentative ruling will become the 28 order of the court. 2 MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS ‘ DATED: November 7, 2018 LEVAD Cross-Defendant, LJ. ANG. Atfo ‘OT Defend: BOGDAN D. DY! dp SAVE AUTO IS x SPORT 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MOTION FOR GOOD FAITH DETERMINATION AND/OR JUDGEMENT ON THE PLEADINGS MICHAEL J. LEVANGIE, State Bar #160163 LEVANGIE LAW GROUP 2021 N Street Sacramento, CA 95811 Tel: (916) 443-4849 Fax: (916) 443-4855 Attorneys for Defendant/Cross-Defendant BOGDAN DEDYK dba SAFE AUTO TRANSPORT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 i ANDY SABERI, CASE NO. CIV 536294 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 Vv. MOTION FOR GOOD FAITH SETTLEMENT AND 14 LES STANFORD CHEVROLET CADILLAC, ORDER DISMISSING ALL INC., BJ INTERSTATE AUTO CROSS-COMPLAINTS and/or 15 TRANSPORTERS, INC., a Nevada corporation, JUDGEMENT ON THE PLEADINGS BOGDAN DEDYK, doing business as SAFE 16 AUTO TRANSPORT, an individual, and DOES 1 Date: Sa4. 9 7 eel : through 25, inclusive, Time: 9:00 AM — 17 Defendants. Department 16 - Courtroom 7 18 Hon. Richard H. Du Bois 19 And Related Cross-Actions 20 21 Defendant/Cross-Defendant, BOGDAN DEDYK dba SAFE AUTO TRANSPORT 22 hereby moves the Court for determination that the settlement! between Safe Auto and Plaintiff is 23 in good faith and that all existing cross-complaints are barred and dismissed in accordance with 24 CCP § 877.6 and/or for judgmen: on the pleadings, as 4 matter of law, pursuant to CCP § 438. 25 I. INTRODUCTION 26 In 2015 Safe Auto Transport was hired to transport a new Chevrolet Corvette C7.R from 27 a dealer, Les Stanford Chevrolet in Michigan, to Andy Saberi in San Francisco. BJ Interstate 28 ! A copy of the settlement agreement is atatched as Ex. A. 1 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS acted as the transportation broker? for the transaction. During transport of the vehicle a hold down strap apparently created a small scratch on the front bumper of the vehicle. The total cost of the repair was $3,623.354. If. LEGAL AUTHORITY A. GOOD FAITH SETTLEMENT , The legal authority regarding a motion to confirm a good faith settlement is provided in California Code of Civil Procedure §877.6. The greater purpose of CCP § 877.6 is to encourage settlement and the equitable sharing of costs. Tech Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494. In Zech Bilt, the California Supreme Court provided factors to be 10 considered by the trial court in examining whether a settlement was made in good faith. These il factors include the following: 12 1) An approximation of the plaintiffs’ total recovery and the settlor’s proportionate 13 liabilities; 14 2) the amount paid in settlement; 15 3) the allocation of the settlement; 16 4) recognition the settler should pay less in settlement than if found liable after trial; 17 5) financial conditions and/or insurance policy limits of the defendants; 18 6) the existence of collusion, fraud or tortious conduct aimed to injure the interests of 19 non-settling defendants; and 20 7) the evaluation should pe made on the basis of information available at the time of the 21 settlement. 22 The party asserting the lack of good faith of the settlement has the burden of proof and 23 must demonstrate the settlement;is so far out of the ballpark in relation to these factors as to be 24 inconsistent with the equitable objectives of the statute. Jd. at 499 - 500. 25 Mt 26 27 2 See Ex B — BJ Interstate’s Points and Authorities in Support of Motion for Judgment on the Pleadings at pg. 2:5, also attached to Request for Judicial Notice, # 1. 28 3 See Ex C - Declaration of James Attridge in Support of Motion for Attorney Fee Award Against Plaintiff (and his 2 attorneys) at ¥ 1, pg 2:5-7,{ 19, pg. 5: -4, and § 22, pg 5:9 — 15, also attached to Request for Judicial Notice, #3. 2 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS B. MOTION FOR JU 2GMENT ON THE PLEADINGS Additionally, Defendant/Cross-Defendant Dedyk dba Safe Auto Transport requests judgement on the pleadings as to the second cause of action for indemnity under the Carmack Amendment, specifically pleaded as 49 USC 14706(b) in the Cross-Complaint of B.J. Interstate against Safe Auto Transport, on the grounds it fails to state a cause of action and is inapplicable as a matter of law. CCP § 438. “TI. LEGAL ARGUMENT A. SETTLEMENT TERMS The settlement terms are simple’. Defendant/Cross-Defendant Dedyk, through his 10 insurance carrier shall pay Plaintiff $20,000.00 and the entire action as to all parties will be 11 dismissed, subject only to a determination of Good Faith and the dismissal of the Cross- 12 Complaint filed by B.J. Interstate against Dedyk dba Safe Auto Transport. 13 B. TECH BILT FACT ORS 14 A good faith settlement bars all claims against the settling tortfeasor for contribution and 15 equitable indemnity. (CCP §§ 877(b), 877.6(c).) and the California Supreme Court has held that, 16 even when a nonsettling defendant claims to be only vicariously or derivatively liable and 17 entitled to total equitable indemnity from an allegedly more culpable tortfeasor, a good faith 18 settlement determination bars the nonsettling tortfeasor's equitable indemnity claims. Far West 19 Financial Corp. v. D & S Co., (1988) 46 Cal.3d 796, 800, 811-812, 817; Bay Development, Ltd. 20 v, Superior Court, (1990) 50 Cal:3d 1012, 1029. 21 I. This settlement is a fair.approximation of the potential liability if this case were to go to trial. 22, According to the Court in Tech-Bilt, the overriding question in determining good faith is 23 whether or not the amount of settlement is within the “reasonable range” of the settling 24 tortfeasors’ proportionate liability. (Tech-Bilt at 499-500). 25 Settling defendants’ contiibutions will meet the general “good faith” tests as the settling 26 amount paid is not grossly disproportionate to what a reasonable person would estimate a 27 28 4 See Ex. D — Precision Body Shop & Detail, Inc. Invoice. 5 Plaintiff previously entered into a settlement agreement with Les Stanford Chevrolet at mediation for $25,000.00. 3 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS ’ defendant’s potential liability to- be. (Abbot Ford, Inc. v. Superior Court (1974) 33 Cal.3d 858- 879.) The party asserting any ‘ack of good faith of the settlement has the burden of proof to demonstrate that the settlement is so far out of the ballpark of reasonable settlements as to be inconsistent with the equitable objectives of the statement. (Tech-Bilt, Inc. at 499-500) Here, the case consideration of $20,000.00 (plus the prior $25,000.00 from Les Stanford) to plaintiff is not only within the “ballpark” of a reasonable settlement of plaintiffs’ claims it is a clear overpayment to avoid continuing litigation costs given the likely verdict value of under $4,000.00. This settlement is not only within the ballpark of the potential liabilities of the settling parties it is beyond reasonable given the facts established in this case. 10 2. The settlement is not derived from collusion, fraud or tortious conduct aimed to injure the interests of non-settling defendants. ll The settling parties have made no concessions to plaintiff or any other defendants or 12 cross-defendants in connection with this settlement, other than the agreement to pay the 13 settlement amount. This agreement was obtained following a lengthy mediation and two 14 settlement conferences 15 C. JUDGEMENT ON THE PLEADINGS - THE CROSS-COMPLAINT FILED BY 16 B.J. INTERSTATE IS BARRED 17 There can be no legitimate challenge to the amount of the proposed settlement being in 18 Good Faith under the Tech-Bilt, factors and CCP 877.6. However, we anticipate BJ Interstate 19 will oppose this motion for Good Faith despite the fact this agreement results in the dismissal of 20 plaintiff's action against B.J. Interstate for their alleged independent negligence. B.J. Interstate 21 has stated an intention to oppose this motion, at least as to dismissal of their cross-complaint for 22 indemnity under the Carmack Amendment. B.J. Interstate is a party to this action for alleged 23 negligence in their handling of ihe transaction as a transportation broker and B.J. Interstate has 24 repeatedly confirmed their role as a broker in filings with this court’, 25 ‘11 26 27 6 Including in Exhibits B and C attached hereto. See Exhibit B at 2:5 and Exhibit C at 4 1, pg 2:5-7, { 19, pg. 5:3-4, 28 and {| 22, pg 5:9 — 15 which are all admissions by BJ Interstate’s counsel that BJ Interstate is only a broker and not a carrier. 4 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS i A "broker" is statutorily “defined as a person, other than a motor carrier . that as a ‘ principal or agent sells, offers- for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as seiling, providing, or arranging for, transportation by motor carrier for compensation. 49 U.S.C. § 13102(2). Simply put - a broker is not a shipper - and cannot sue a carrier under the Carmack Amendment. Exel, Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140, 148-149 (6th Cir, 2015)’. As a result the cause of action under 49 USC 14706(b) as pled in the Cross-Complaint filed by BJ Interstate is barred and should be dismissed as part of the order finding this settlement in Good Faith and/or as a matter of law pursuant to the request for Judgement on the Pleadings. 10 There was no written contract between Safe Auto Transport and BJ Interstate. The BJ i Interstate cross-complaint seeks attorney fees only under the Carmack Amendment. BJ Interstate 12 is a registered broker® and as such is not covered by the Carmack Amendment provisions. Within 13 the provisions of the Carmack Amendment, 49 U.S.C. § 14706, remedies are provided to 14 shippers against carriers for lost or damaged goods, and if a broker acts as a carrier they could be 15 held liable, but there is no provision for a claim against a carrier by a broker. Therefore the 16 cause of action is barred and should be dismissed as part of the order finding this settlement in 17 Good Faith and/or as a matter of law pursuant to the request for Judgement on the Pleadings. 18 An order determining a settlement to be in Good Faith extinguishes an indemnity claim 19 under the Carmack Amendment. Masson and Dixon International v. Lapmaster International 20 LLC, 632 F2d. 1056 (9th Cir. 2010). We anticipate BJ Interstate will attempt to oppose this 21 motion based upon a line of California decisions holding that a Good Faith order does not bar a 22 claim for statutory indemnity and as the Carmack Amendment is a Federal statute, it is not 23 barred. However, the language of the indemnity provision within the Carmack Amendment is 24 akin to California’s general indemnity statute CCP § 1021.6 which California Courts have held 25 are claims barred by a Good Faith determination. 26 7 A copy of Masson and Dixon International v. Lapmaster International LLC, 632 F2d. 1056 (9th Cir. 2010) is item 27 #7 to defendant/cross-defendant’s Notice of Lodging Of Non-California Authorities. 28 8 See Ex E— FMCSA Registration for B.J. Interstate as a Broker only, and also attached to Defendant/Cross- Defendant’s Request for Judicial Notice'#5, and Ex. F, the USDOT #2226247, also attached to Defendant/Cross- Defendant’s Request for JudicialNotice #6, 5 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS , As there is no contract. between Safe Auto and B.J. Interstate, let alone one with an ¥ indemnity provision, and given that B.J. Interstate is a broker, not a carrier or freight forwarder, they are not entitled to indemnity under Carmack. There is no basis for indemnity under 49 USC 14706 (b) as B.J. Interstate did not issue the Bill of Lading nor deliver the property. They simply acted, as per their USDOT license, as a broker. Traffic Tech, Inc. v. Arts Transportation, Inc., No. 15 C 8014 (N. D. Il. 2016) Carmack liability only applies to carriers and not brokers. See, Chubb v. H.A. Transportation 243 F. Supp. 2d. 1064 (C.D. Cal. 2002). A good faith settlement determination bars all equitable indemnity claims, but does not bar claims based on an applicable and specific statutory right to indemnity. Kantor v. Housing 10 Authority (1992) 8 Cal. App. 4t 424, 429-432; see also John Hancock Mutual Life Ins. Co. v. 11 Setser (1996) 42 Cal.App.4th 1524, 1530.) However, neither CCP section 1021.6 nor 49 USC 12 14706(b) create a statutory right to indemnity. Instead, as the John Hancock court recognized 13 with regard to section 1021.6 these type of sections merely ‘permits an indemnitee to’ recover . . . 14 attorney fees in an implied indemnity action under specified circumstances.’ John Hancock 15 Mutual Life Ins. Co. v. Setser, supra, @ 1531.) 16 A claim for attorney fees under section 1021.6 or 49 USC 14706(b) are "simply a 17 statutory incident" of a "successful common law claim for implied equitable indemnity." (Jd. at 18 p. 1534.) When an equitable indemnity claim is barred by a good faith settlement determination 19 under section 877.6, the attorney. fees component of that equitable indemnity claim under section 20 1021.6 and/or 49 USC 14706(b), is also barred. See, ie., John Hancock Mutual Life Ins. Co. v. 21 Setser, supra, 42 Cal.App.4th at p. 1534. Accordingly, any claim for indemnity or attorney fees is 22 barred. 23 I. The Carmack Amendment Does Not Apply To Claims ByA Broker 24 AgainstA Carrier There is no contract between BJ Interstate and Safe Auto requiring defense nor indemnity 25 be provided. BJ Interstate now’ attempts to invoke the indemnity provisions of the Carmack 26 : 27 28 ° A copy of Traffic Tech, Inc. v. Arts Transportation, Inc., No. 15 C 8014 (N. D. Ill. 2016) is item # 8 to defendant/cross-defendant’s Notice of Lodging Of Non-California Authorities. % 6 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS + - ~ ” Amendment. However, BJ Interstate is only a licensed transportation broker!®, and not a carrier. As such, as a matter of law, these provisions are not applicable to BJ Interstate. The Carmack Amendment generally preempts state-law causes of action that a shipper might pursue against a carrier for lost or damaged goods. REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008)!!. This includes state causes of action against carriers where goods are damaged in interstate commerce. Jd. Claims for indemnity by a broker are separate and distinct claims cutside the scope of the Carmack Amendment. See, Traffic Tech, Inc. v. Arts Transp., Inc., 2016 WL 1270496 (N.D. Ill. Apr. 1, 2016). Traffic Tech, Inc. addressed the liability of a carrier to a broker for damaged goods. In 10 that case the broker claimed Carmack Amendment liability against the carrier where a company i was contracted to ship a load of apple slices from Washington State to a food processing facility 12 in Iowa. After the food company made the contract, the broker contracted with a carrier to 13 accomplish the shipment. During transit, the carrier put spare tires in the truck’s trailer and when 14 the apple slices were delivered they were rejected. 15 As a result of the non-agzeptance of goods, the broker paid the shipper for the value of 16 the apple slices. Following that. payment, the broker sued the carrier for indemnification of the 17 payment made. The theory was, the carrier was responsible for the damage because they shipped 18 the tires with the apple slices and made the shipment unusable. The broker based their claim on 19 theories that the shipper was liable under the Carmack Amendment and breach of contract. The 20 court held only the breach of contract claim was viable noting: 21 1. Within the provisions of the Carmack Amendment, 49 U.S.C. § 14706, remedies are 22 provided to shippers against carriers for lost or damaged goods, and if a broker acts as 23 a carrier they could ‘be held liable, but there is no provision in the Carmack 24 Amendment for a claim against a carrier by a broker. 25 x 26 0 See Ex. E - BJ Interstate USDOT # 226247 — Registered and Licensed by the Federal Motor Carrier Safety 27 Administration as a broker with no authority to act as a carrier, also attached to Defendant / Cross-Defendant’s . Request for Judicial Notice # 6. 28 1A copy of REI Transp, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008) is item # 10 to defendant/cross-defendant’s Notice of. Lodging Of Non-California Authorities. 7 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS - 2. Because there is no provision in the Carmack Amendment for brokers to sue carriers; a state law breach of tiontract remedy is the only claim available. The Carmack Amendmeut allows the shipper. who contracts to ship goods to recover for loss against the carrier who issues the bill of lading. The shipper may also seek recovery against the delivering carrier. See 49 U.S.C. § 14706(a)(1). These carriers may then recover from connecting carriers. See id. § 14706(b) but there is no basis for claim by a broker against a carrier for indemnity under the Carmack Amendment. In this instance, Plaintiff Saberi is the ‘shipper’, B.J. Interstate is the ‘broker’, and Safe Auto is the ‘carrier. Under the Carmack Amendment, only Saberi can bring an action against 10 Safe Auto. B.J. Interstate is not authorized to do so. Accordingly, they are prohibited, as a i matter of law, from maintaining such an action and the court must enter judgment in favor of the 12 moving party as a matter of law. 13 IV. CONCLUSION 14 Here, B.J, Interstate was not a shipper - but a broker - who arranged for transportation by 15 another carrier, Safe Auto, who.issued a bill of lading and performed the transportation of the 16 shipment. As such only a breach of contract or equitable indemnity claim would be viable by B.J 17 Interstate against Safe Auto. There is no written contract between BJ Interstate and Safe Auto 18 and there is no basis for a claim of defense (attorney fees) nor indemnity — as Safe Auto has 19 previously tendered the potential damages 20 The proposed settlement agreement complies with the California Code of Civil Procedure 21 §877.6, and the relevant factors listed in Tech Bilt, Inc. v. Woodward-Clyde & Associates 22 Bogdan Dedyk dba Safe Auto Transport respectfully requests this Court grant the present motion, 23 and order the settlement as being made in good faith, which bars all cross complaints, including 24 that of B.J. Interstate and, if necessary, enter a Judgment on the Pleadings of the second cause of 25 action of the Cross-Complaint filed by B.J. Interstate thereby barring any future claim by any 26 other party to this litigation and dismissing all actual and deemed cross-complaints, including 27 that filed by B.J. Interstate. 28 8 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS DATED: November7, 2018 LEVAN 7 By: mie Zi TAEIA. LEYAG ttorneys for Defendant/Crg (dant, BOGDAN DEDYK db: SAFE AUTQ RADES oS 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 MOTION FOR GOOD FAITH SETTLEMENT AND/OR JUDGEMENT ON THE PLEADINGS a. None ly De) SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Release of all claims is made and entered into by and between the parties below as of the date of execution: “PLAINTIFF” ANDY SABERI “DEFENDANT” BOGDAN DEDYK dba SAFE AUTO TRANSPORT RECITALS A Plaintiff filed a complaint against Defendant and others in the Superior Court of the State of California, County of San Mateo, known as San Mateo County Superior Court Case No. CIV-536294 (the “Complaint”), arising out of certain alleged acts or omissions by Defendant and/or others. B. All parties to this agreement have been fully advised of their rights under applicable law and of the facts regarding pre-trial preparation and probable outcome at trial. Cc. Plaintiff agrees this Settlement Agreement shall serve as a waiver of all claims against Defendant, including, but not limited to, any cause of action against this Defendant included in the original Complaint, any amendments to the original Complaint and/or any other made or potential claim or causes of action, without limitation, accruing before the date of this agreement. : D. The parties expressly agree that this settlement payment is made as a good faith customer service reimbursement of a claim that is wholly contingent upon a court order finding this agreement in Good Faith pursuant to CCP § 877.6 and the concurrent dismissal of the cross-complaint filed by BJ Interstate and any cross-complaint by other parties against this defendant and precluding any future claim for indemnity or contribution against this defendant. AGREEMENT NOW THEREFORE, in consideration of their mutual covenants and promises, the parties agree as follows: 1.0 RELEASE AND DISCHARGE Ll Upon the finding of this resolution to be in Good Faith pursuant to CCP § 877.6 and the dismissal of all cross-complaints against defendant, with prejudice, and for the consideration set forth in Section 2.0, Plaintiff hereby releases and forever discharges Defendant as well as their respective subsidiaries, parent corporations, principals, agents, owners, insurance carriers, attorneys, employees, employers, board members and representatives, from any and all past, present or future claims, demands, obligations, SETTLEMENT & RELEASE AGREEMENT PAGE 1OF5 actions, causes of action, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery, which the Plaintiff now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the events described in the Complaint or otherwise, any and all known or unknown claims damages or injuries to the Plaintiff, or any future claim of Plaintiff's representatives or heirs, which have resulted or may result from the alleged acts or omissions of Defendant or their respective subsidiaries,. parent corporations, principals, agents, owners, insurance carriers, employees, employers, or representatives. 12 This Release shall apply to Defendant’s present and future officers, directors, stockholders, employees, board members, independent contractors, attorneys, owners, agents, servants, representatives, employees, subsidiaries, affiliates, partners, agents, representatives, successors in interest, assigns and all other persons, firms, corporations or entities with whom any of the former have been, are now, or may hereafter be affiliated. 1.3 This Release on the part of the Plaintiff shall be a fully binding and complete settlement by the Plaintiff, his assigns and successors. 14 Plaintiff acknowledges and agrees that the Release and discharge set forth above is a general release. Plaintiff expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise, and which, if known, would materially affect the Plaintiff's decision to enter into this Settlement Agreement. Plaintiff further agrees that Plaintiff has accepted the waiver specified herein as a complete compromise of matters involving disputed issues of law and fact. Plaintiff assumes the risk that the facts or law may be other than Plaintiff believes. 1S Plaintiff expressly waives all rights he has, or may have, under Section 1542 of the Civil Code of Califomia and similar laws of any state or territory of the United States or other jurisdictions. Section 1542 of the Civil Code of California provides as follows: Section 1542. General Release - Claiiris Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. Hl Page 2 of 5 2.0 CONSIDERATION FOR SETTLEMENT 21 In consideration for this Release and dismissal with prejudice of San Mateo County Superior Court Case No. CV-536294 entitled Saberi v Les Stanford, et al. the parties agree and recognize that the insurance carrier for Defendant Bogdan Dedyk dba Safe Auto Transport will remit the total sum of Twenty Thousand Dollars ($20,000.00) payable to Andy Saberi or as otherwise directed in the final court order finding this resolution to be in Good faith pursuant to CCP 877.6. Payment shall be made within seven (7) days after the final order is filed. This settlement agreement and any obligation to remit payment or dismiss claims hereunder is expressly contingent upon the court entering an order granting a motion finding this resolution to be in Good faith pursuant to CCP 877.6 and dismissing all current cross-complaints in total and precluding any future cross-complaint or action for indemnity or contribution against the defendant. 2.2. If payment is made within seven (7) days after the final order is filed, Plaintiff will dismiss the entire Complaint, with prejudice, and each side will bear their own attomey fees and costs. If payment is not made within seven (7) days, Plaintiff may request the Court to award attorney’s fees and costs to Plaintiff to enforce this Settlement Agreement. Notwithstanding any dismissal of the action, the Court shall retain jurisdiction to enforce the terms of this agreement. 3.0 REPRESENTATION OF COMPREHENSION OF DOCUMENT 3.1 In entering into this Settlement Agreement, Plaintiff represents that he has either relied upon the advice of his attorneys, who are the attorneys of his own choosing, or waived their right to so seck such advice, concerning the legal and income tax consequences of the Settlement Agreement; that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Plaintiff. 4.0 WARRANTY OF CAPACITY TO EXECUTE AGREEMENT 4.1 Plaintiff represents and warrants that no person or entity has, or has had, any interest in the vehicle, claims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein; Plaintiff has the sole right and exclusive authority to execute this Settlement Agreement and has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, causes of action, or the rights to any of the same as referred to in this Settlement Agreement. 4.2 Plaintiff represents he is not aware of any lien upon the claims in this action or the proceeds of this settlement and Plaintiff acknowledges he is solely responsible to pay any lien, if legally enforceable, if asserted by anyone or any entity, including any insurer, any attorney, or any state or federal agency. Defendant, his insurance carrier, and attorneys are released from any obligation to pay any lien or claim Page 3 ofS and Plaintiff shall defend and indemnify defendant, his insurance carrier, and/or attorney from any such claim by a third party. 5.0 GOVERNING LAW 3.1 This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of California. For Plaintiff's protection, California law requires the following to appear on this form: ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR FRAUDULENT CLAIM FOR THE PAYMENT OF A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINES AND CONFINEMENT IN STATE PRISON. Insurance Code §1871.2. 6.0 ADDITIONAL DOCUMENTS 6.1 The parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement. 6.2 This Agreement may be executed simultaneously in one or more counterparts, which counterparts may be on facsimile paper, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7.0 SUCCESSORS IN INTEREST TA This Settlement Agreement shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each party hereto. 8.0 SEVERABILITY 8.1 If one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability of that provision shall not affect any other provision of the Agreement and this Agreement shall be construed as if the invalid, illegal or unenforceable provision were never contained in it. DATED: 10 - 22-\8% hei bP ANBY SABERT gp ‘7 — Page 4 of5 DATED: BOGDAN DEDYK DBA SAFE AUTO TRANSPORT APPROVED AS TO FORM: DATED: (9-22 -2an5 |AMES DOMBROSKI HOMAS If SABER1 TTORN#YS FOR PLAINTIF DY, DATED: Me (K HAEL J. LeVANGI Attorp ey S fendant, OGD, DEDYK. db O\TRANSP ok Page 5 of 5 aN ~ « « JAMES ATTRIDGE [SBN NO. 124003] LAW OFFICES OF JAMES ATTRIDGE 270 Divisadero Street, #3 San Francisco, CA 94117 i iL ED COUNTY Telephone: (415) 552-3088 MATEO Email: jattridge@attridgelaw.com |sev gi ani? Attorney for Defendant BJ Interstate Gust Auto Transporters, Inc. irl Les SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO t 10 11 ANDY SABERI, an individual, Plaintiff, Case No: CIV-536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 12 LES STANFORD CHEVROLET FOR JUDGEMENT ON THE PLEADINGS CADILLAC, INC. a Michigan corporation, 13 BJ INTERSTATE AUTO TRANSPORTERS, DATE: OCTOBER 20, 2017 INC. a Nevada corporation, BOGDAN 14 DEDYK, doing business as SAFE AUTO TIME: 9AM TRANSPORT, an individual, and DOES 1 15 through 25, inclusive, DEPARTMENT 16-COURTROOM 7 16 HONORABLE RICHARD H. DU BOIS --— =So ---- Saas 17 18 19 INTRODUCTION 20 There is only one cause of action (the fourth) directed at the moving party, BJ Interstate Auto 21 Transporters and it hangs on thisallegation in paragraph 31: “Saberi is informed and believes that 22 Safe Auto Transport was uninsured for the damages alleged herein.” Judicially noticeable material, 23 including a declaration by plaintiff Saberi’s own counsel, disproves this allegation. Belief can be a 24 matter of faith, or of imagining, but information is not. All the information addressing this point in 25 the court’s file points in the opposite direction: that on the date co-defendant Bogdan Dedyk, dba 26 Safe Auto Transport, caused damage to the plaintiff's sportscar, defendant Dedyk was, in fact, 27 insured. Case closed. 28 1 TRIAL BRIEF ~~ i < FACTS Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First Amended Complaint, (FAC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for transportation of the corvette to San Francisco. In turn BJ Interstate contacted co-defendant Dedyk, dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (FAC para 11, 12) Some damage was done to the vehicle in transit, and Dedyk has admitted fault. Apparently, rather than admit this initially, Dedyk attempted repair before delivery and those repairs 10 were cosmetically flawed, making the damage easily discernable. Mr. Saberi has sued Les Stanford 11 contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ 12 Interstate for that same reason. 13 Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a 14 claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the 15 defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned 16 was retained, February 18, 2016 plaintiff Saberi’s counsel received an e-mail advising him that BJ 17 Interstate was a broker and could only be sued for negligent entrustment. That c-mail contained two 18 case citations to support the point and referred plaintiffs counsel to the Federal Motor Carrier Safety 19 Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23, 20 2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that 21 Dedyk was